As Thick As Thieves

December 23rd 2015, a date that has been ingrained in my brain since the Totally Wicked Legal Challenge was heard in the Court of Justice of the European Union on October 1st. As the old saying goes – “hope for the best, prepare for the worst” – as many people suggested that the challenge appeared to be very strong, but it seems that many folks were content to hinge everything on Totally Wicked being 110% successful.

Well today saw a pre-cursor of what we can expect from the Judges of the CJEU.

Advocate General Kokott considers the new EU tobacco directive of 2014 to be valid

Now of course, this is only the “opinion” of the Advocate General but in most cases this opinion is usually also the result from the Judges themselves. However, there is still time and the judges may decide differently, but frankly I’m not holding my breath.

So what do we have?

In Advocate General Kokott’s view, the EU legislature did not exceed the considerable latitude to be given to it in ensuring that tobacco and related products may be placed on the market under uniform conditions throughout the EU without losing sight of the fundamental objective of a high level of health protection.

So the unelected eurocrats have a lot of room to basically do what they like, they don’t like something they can propose a law to get it restricted or banned completely (re snus), of course it’s all in the name of a high level of health protection. Which completely misses the point. Charging down this “protect the public’s health” path only serves to remove personal freedoms, after all the Directive doesn’t apply stringent measures to tobacco like consistent dosing or individual toxicological analyses on each ingredient.

In so far as the directive must be examined in this context, it is based on the correct legal basis (that is the legal basis for internal market harmonisation measures) and does not infringe the principles of equal treatment, free competition, proportionality, legal certainty and subsidiarity or the obligation to provide a statement of reasons, or the fundamental rights of the manufacturers or retailers, in particular the freedom to conduct a business, the freedom of expression and the right to property.

So, completely destroying a successful market is the legal basis for internal market harmonisation. Of course, the measures as defined in Article 20 with regards to e-cigarettes can be met by those with the deepest pockets, which of course is something that the eurocrats are fully aware of.


Vuse, an R J Reynolds product. A tobacco industry product. It meets the defined criteria for being “leak-free” for filling. Of course, many independent vapour product manufacturers have tried various fill methods – side-fill, top-fill and so on. This “internal market harmonisation” stuff only serves the vapour market to the tobacco industry, surely that goes against the principles of Article 5.3 right?


Here’s the crux of the matter. “the EU legislature was entitled to take the view, having regard in particular to the fundamental differences between the Member States’ rules and the cross-border dimension of the problem, that rules at Union level are required”. In other words, because each Member State within the EU is likely to have a differing ruleset for e-cigarettes for their own Country, and for the cross-border sale, Sovereign rules are redundant and an EU wide (Union Level) rule is required.

Basically, whatever is in the Directive must therefore be applied as a minimum. A minimum. Member States are of course allowed to go further than the Directive if they so choose, some (like the UK) are only going to implement the bare minimum, but frankly the bare minimum will have a massive negative impact on the industry anyway.

Shockingly, according to the Press Release (emphasis mine):

Those special rules are, however, relatively moderate, both in comparison with the rules for conventional tobacco products and by international standards, and are ultimately not disproportionate.

Just think about that for a second. The Advocate General believes that the rules in Article 20 are relatively moderate and ultimately not disproportionate. How is any of the TPD not disproportionate?

Anything over 2ml that isn’t leak-proof (totally impossible), tamper proof with a leak free filling mechanism, gone.  E-Liquids can’t come in bottles bigger than 10ml, must have warnings, child proof caps (fine with the caps, it’s sensible, probably the only sensible thing).  Regulated, measured doses of Nicotine per puff (come on, really?!).

What about all the evidence?

Advocate General Kokott takes the view that it is adequately documented that the EU legislature had comprehensive material on which it could base its evaluation of compliance with the principle of subsidiarity

So the AG believes that the TPD is in compliance with the principle of subsidiarity where rules should be applied at a “local” (i.e. National in our case) level wherever possible. Oh dear. Someone has no doubt been whispering in their ears.

Now of course you would think that our “friends” would be crying out over this opinion would you? Think again. A press release from our “vape friendly” tobacco control sockpuppet charity suggests the case has been dismissed; not entirely true.

AG Kokott also dismissed the legal challenge brought by E-cigarette manufacturer, Totally Wicked, which is claiming that Article 20 of the Directive on the regulation of electronic cigarettes is in contravention of EU law and that it is inappropriate to apply the rules banning the advertising of tobacco products to electronic cigarettes. AG Kokott argued that the special rules for e-cigarettes were proportionate.

The case hasn’t been “dismissed” as is clearly noted at the bottom of the CJEU press release:

The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.

The AG has rendered her opinion, which was the expected “The TPD is super fabby wonderful & based on solid evidence & we should love it”. Well, wibble.

But what does our fearless, vape loving ASH CEO have to say about it? Not much as it turns out:

Deborah Arnott, Chief Executive of health charity ASH said:

“The Advocate General’s Opinion is very clear: the Directive is lawful and the UK is allowed to go further in standardising the pack. We await the final judgement of the European Court of Justice but it is unlikely to differ from the Opinion.”

Super fabby wonderful, except there’s no mention or cry of despair that the TW challenge has been “dismissed”.

Always figured that would happen. We’ve seen time and time again how lukewarm ASH is to vaping, perhaps (as Simon Clark suggests) she really is not bovvered.

Now is the time for vapers, non-vapers and smokers to get writing to their MP’s and MEP’s, we need to keep the pressure on. This is only the “opinion” of someone who has pretty clearly been swayed by external influence, it still has to be considered for judgement, but the EU is a lumbering, sluggish pile of bantha poo-doo that getting the Directive annulled or even stripping Article 20 out will not happen quickly.

There’s still plenty of work to do, and just as Fraser Cropper states:

“Today the Advocate General issued her opinion in relation to Totally Wicked’s legal challenge to Article 20 of the Tobacco Products Directive. This is not a formal decision, nor a legal judgement on the questions we raised in our challenge. It is a legal opinion prepared to assist the CJEU judges in making their decision and will be considered alongside the written and oral submissions. It is not binding on the CJEU judges. The decision of the judges is expected in early 2016.”

On a final note, I’d like to extend my heartfelt thanks and gratitude to Fraser Cropper and Totally Wicked for being proactive and trying to do something in the face of complete ineptitude.